[CLC-Discussion] Can a construction lender bond off a construction lien?

Mon Mar 4 13:00:38 PST 2013

Because 713.24 also gives standing to transfer liens to any person having an interest in “the contract under which the lien is claimed”.  That is either the direct contract to which the GC is a party (but the lender typically is not) or it could be a subcontract to which, again, the GC is a party.

From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Dan Vega
Sent: Monday, March 04, 2013 3:44 PM
To: 'fred.dudley at hklaw.com'; blc at kirwinnorris.com; bkpa1 at aol.com; Leiby at mkpalaw.com; hroberts at carltonfields.com; clc-discussion at lists.flabarrpptl.org
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

I just read below and for what it is worth,  if a GC can transfer a lien to a bond per 713.24, why would a lender not be able to do it?

GC’s transfer liens to bonds all of the time.  Practically speaking, every decent owner/gc contract requires the gc to do so.

It can hardly be argued that a GC has an “interest” in the property greater than a mortgage holder/lender.

Dan

Daniel R. Vega, Esq.
Board Certified in Construction Law
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org]<mailto:[mailto:clc-discussion-bounces at lists.flabarrpptl.org]> On Behalf Of fred.dudley at hklaw.com<mailto:fred.dudley at hklaw.com>
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Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

This is the statute that makes Florida a "lien theory" state rather than a "title theory" state like California. The lien (mortgage or construction) is NOT an interest in real property.

Frederick Dudley | Holland & Knight
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Bryan L. Capps
Sent: Monday, March 04, 2013 12:53 PM
To: Barry Kalmanson; Leiby at mkpalaw.com<mailto:Leiby at mkpalaw.com>; hroberts at carltonfields.com<mailto:hroberts at carltonfields.com>; clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Just to kick this dead horse one more time, note that Florida Statute Section 697.02<http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0600-0699/0697/Sections/0697.02.html> says, in its entirety, “Nature of a mortgage.—A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession.”  So, whether a lender has an interest in real property sufficient to support a transfer-of-lien bond is apparently not a function/subject of case law alone.  Who knew.

Best regards.

Bryan Capps

From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Barry Kalmanson
Sent: Wednesday, February 06, 2013 1:48 PM
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Subject: Re: [CLC-Discussion] Can a construction lenderbond off aconstruction lien?

Maybe some legislative clarification is in order.
Barry Kalmanson
bkpa1 at aol.com<mailto:bkpa1 at aol.com>

Reese J. Henderson, Jr.
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From: Larry Leiby <Leiby at mkpalaw.com<mailto:Leiby at mkpalaw.com>>
To: 'Roberts, Hardy L.' <hroberts at carltonfields.com<mailto:hroberts at carltonfields.com>>; 'Construction Law Discussion' <clc-discussion at lists.flabarrpptl.org<mailto:clc-discussion at lists.flabarrpptl.org>>
Sent: Wed, Feb 6, 2013 11:27 am
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
I agree with those who noted that a lender does not have an interest in property, instead it has a mortgage lien, and thus is not covered under 713.24.  However that is the tip of the iceberg and begs the question.

The concern that I have experienced is where the lender seeks to transfer the lien to bond but the bond form is not conditioned only on proving the lien claim it is also conditioned on proving priority.  That is not what 713.24 is about, and the clerks aren’t real students of 713.24 as they have many duties.  If that happens the lienor should challenge any certificate of transfer.

So a lender is a little nuts wanting to transfer a lien under 713.24 without added language (which would not meet the requirements of 713.24), because then the lienor need only prove its lien claim and the condition of the bond is performed where the principal and surety on the bond are on the hook (assuming they didn’t sneak in any added language to the 713.24 bond form).  The lender loses its argument about the lien not having equity and being inferior to the mortgage by bonding it off and taking the property equity out of the equation.  The lienor should be ecstatic about not being worried about the lender’s priority any more, but must watch carefully the language in the bond.  If the lender is looking to clear title for some reason of its own, it should not be the principal on the bond – only someone with an interest.  If the lender gets cute and adds language to the bond, we have some new issues to address, which I believe are not yet resolved.

Thus if the lender uses a 713.24 bond to transfer it off, the question is:  Is the lien really transferred off, or is the lien still there along with the bond because the lender cannot meet the requirements of 713.24 by not having an interest in the property?

Larry R. Leiby, Esq.
Malka & Kravitz, P.A.
1300 Sawgrass Corp. Pkwy., Suite 100
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org?>] On Behalf Of John Campo
Sent: Tuesday, February 05, 2013 2:41 PM
To: 'Matthew Belcastro'; 'Raymond L. Robinson'; 'Gibbons, Michael'; 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

As a practical matter, I would welcome a Lien Transfer Bond knowing that a pile of money is readily available for the taking should my client prevail on its lien.

John D. Campo, Esq.
Florida Bar Board Certified - Construction Law
john at npw-law.com<mailto:john at npw-law.com>

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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org?>] On Behalf Of Matthew Belcastro
Sent: Tuesday, February 05, 2013 2:16 PM
To: Raymond L. Robinson; Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?

I'm not sure I understand why the construction lender wants to bond off the lien?  Are they trying to convert to permanent financing and unable as a result of the construction lien?

Matthew Belcastro
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Raymond L. Robinson
Sent: Tuesday, February 05, 2013 2:02 PM
To: Gibbons, Michael; Roberts, Hardy L.; Construction Law Discussion
Subject: Re: [CLC-Discussion] Can a construction lender bond off aconstruction lien?
One could make the argument that Florida is considered a “lien” state and case law has held that a mortgage is not a transfer of “interest” in real property and therefore does not need two subscribing witnesses.  Good question though.  Let me know if you find the answer.

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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Gibbons, Michael
Sent: Tuesday, February 05, 2013 12:19 PM
To: 'Roberts, Hardy L.'; 'Construction Law Discussion'
Subject: Re: [CLC-Discussion] Can a construction lender bond off a construction lien?

Yes.  The lender has “an interest” via its mortgage in the real property on which the lien is imposed.

Michael R. Gibbons  (Bio<http://lowndes-law.com/our-people/michael-r-gibbons>)
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From: clc-discussion-bounces at lists.flabarrpptl.org<mailto:clc-discussion-bounces at lists.flabarrpptl.org> [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of Roberts, Hardy L.
Sent: Tuesday, February 05, 2013 11:55 AM
To: 'Construction Law Discussion'
Subject: [CLC-Discussion] Can a construction lender bond off a construction lien?

Anyone have any thoughts on this?

[Carlton Fields]
Hardy L. Roberts
Attorney at Law / Board Certified in Construction Law by the Florida Bar
4221 W. Boy Scout Blvd., Ste. 1000
Tampa, Florida  33607-5780
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